1804030 (Refugee)

1804030 (Refugee) [2021] AATA 5322 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1804030
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Mr S Norman
DATE:6 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 December 2021 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Assyrian Christian – political opinion – Christian women’s rights activist – particular social group – member of Assyrian Christian family – failed asylum seeker – educated independent Christian women – threats of harm by telephone – victim of assault and failed kidnap attempt – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of Iraq, applied for the visa on 21 September 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant, accompanied by her agent, attended the Tribunal hearing on 30 November 2021. The Tribunal was assisted by an interpreter at hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s receiving country / s.36(3)-(5A) of the Migration Act:
With her Protection visa (PV) application, the female applicant (DOB: [date]) provided the following information:
·A certified copy of the Iraqi passport [number] in the name of [applicant name], Date of birth: [date], issued [in] 2015 and valid [until] 2023;
·A copy and translation of the Certificate of Iraqi nationality, No: [number] in the name of [applicant name];
·A copy and translation of the Iraqi Personal ID card [number] in the name of [applicant name]
Based on the evidence, the Tribunal accepts the applicant is a citizen of Iraq, and that Iraq is her receiving country.
In the absence of material evidence to the contrary, the Tribunal finds the applicant does not have third country protection, pursuant to s.36(3)-(5A) of the Act.
The applicant’s family / employment / migration history:

Date Event details

[June] 2016 Arrived as a holder of a [visa] granted on 24 May 2016 that was in effect until [September] 2016

21 September 2016 Applied for a Permanent Protection (XA-866) visa with the assistance of [a named migration agent] (MARN: [number])

The applicant (DOB: [date]) has two parents, one brother and one sister. The applicant said that from her birth until 1992, she resided in [Area 1], Erbil (or Irbil); and from 1992 until she departed Iraq in June 2016, she had resided in [Area 2], Erbil, Kurdistan. The applicant said her parents and brother remained in Erbil (where her brother had operated a [business] but that he was now unemployed and looking to depart Iraq), however, her sister and brother-in-law had departed Iraq for [Country 1] in October 2015, and had subsequently been granted asylum.
The applicant confirmed she had worked [with] [Employer 1] from October 2009 until May 2014 (the position was full time and she was granted approximately 4 weeks leave per year); and she had then worked with [Employer 2] from May 2014 until she departed Iraq in June 2016 (again the position was full time and the applicant was granted approximately four weeks leave per year).
The applicant’s claims for protection:
At hearing, the applicant advised that after arriving in Australia, she had married her Australian citizen husband, and that two infant (Australian citizen) children had arisen from that union. When then asked why she had not pursued a Partner visa, she said that it was too expensive, and she did not want to wait for the ‘five years’ it may take to be granted – and the Tribunal understood the applicant was concerned about the health of her mother in Iraq.
That said, the female applicant attended a Department interview on 17 October 2017. The applicant claimed:
·     She is an Assyrian Christian from Erbil
·     Her father is/was a [public figure], being [Position 1] of [Organisation 1] in Erbil.
·     She is also a member of [Organisation 1] and had represented the [organisation] at various forums held in [Country 2], [Country 3], [Country 1] and [Country 4]
·     she had advocated against Islamic extremism and discrimination against religious minorities, particularly Assyrian Christians
·     as a consequence of her activities, she received threats from Kurdish and Islamic groups
·     she said the local Kurdish government co-exists with the Islamic party and the Christians are victims of the situation imposed in Kurdistan
·     she believed that Kurdish society marginalised and persecuted religious minorities
·     on [date] February 2016, the applicant suffered a attack by a Kurdish speaking Islamic group. She was verbally insulted and beaten and she suffered ‘contusions and bruises for which she was hospitalised’. Her family worried that terrorists may come to the hospital, so they moved her to a different location, said to be in [Area 1] of Erbil, and where she remained to recover
The agent said the applicant:
·     was a Christian women’s’ rights activist from Erbil
·     had been a ‘particularly active’ member of [Organisation 1] since 2009 or 2010
·     she had visited Assyrian communities in [Country 2], [Country 3], [Country 5], [Country 4] and [Country 1] on numerous occasions since 2010. While there she had updated the Assyrian communities about the difficulties for Assyrians in Iraq, and especially in Kurdistan
·     she had received telephone threats directly and through her father who was concerned for her safety
·     on [date] February 2016, and through the intervention of her friends and by-standers, the applicant was subject to a failed kidnap attempt (a police report and photographs of the incident were lodged)
·     she fears that Islamic groups which work with the Kurdish authorities will kill her
·     the applicant fears serious or significant harm first, for reasons of her religion (as an educated independent Christian woman who works actively against the Islamist view of women); second, for reason of her membership of a particular social group (she comes from an Assyrian Christian family and refused to abide by the Islamic codes and their treatment of women); and third, for reason of her political opinion (Christian women’s rights activist)
In the applicant’s written statement dated 1 June 2021, she stated:
·     The Kurds attempted to kidnap and assault her and her assailants had acted as if they were the Kurdish police by wearing a uniform. After hearing what the applicant understood to be the reciting of Islamic verses, the applicant presumed they might be from one of the Kurdish Islamic groups
·     the applicant then referred to the assault (the Tribunal understands there was only one claimed assault), that she was heavily beaten, that she was thrown into ‘another car that was parked at the side of the road’. She then said she had ‘gathered from that crazy way of assaulting and kidnapping her the type of the attackers and of course, she was helped by her friends who are riding the car with her … her friends helped her to escape when they started screaming and shouting for help which led to some random people coming for her help and escape that situation’. She was then taken to the hospital and she was ‘frightened and unconscious’
·     the applicant subsequently fled from the hospital as she was frightened the attackers may have connections inside the hospital and they could return to assault and kidnap her. She also feared the attackers may have connections with the authorities and medical departments and she may be taken even while in hospital
·     she referred to the ‘huge number of trips she had taken to Europe like [Country 1] and [Country 4] since she represented [Organisation 1]’. She said she had returned to Iraq ‘even though she needed protection’. She said she was helping [Organisation 1] ‘with submissions and some religious matters which obligated her to travel to many countries and then return’
·     the applicant said her attack on [date] February 2016 ‘escalated her situation to huge danger that had severely impacted her safety’. Her father had advised her to ‘stay silent and never stay alone wherever she went in Iraq after these terrorist people have found a unique way of attacking, acting like policemen and performing attacks, assaults, beating and kidnapping, and this might happen again’
·     the applicant said ‘especially when she was a young girl who had travelled around, and whose looks encourage men in the attackers to intentionally assault, kidnap her and surely sexually assault her, since the reality in the whole of Iraq had showed cases of hundreds of women and girls who were assaulted, under an unstable law that allows the attacker to get out of prison if he accept to marry his victim’
·     the applicant said the Iraqi Criminal law had ‘lightened the provisions of those who attack in Iraq and that it encouraged and increased the attacks against girls and women in Iraq’
·     the applicant said she could not find security in Iraq ‘even though she was moving in accordance with party activities to protect women and stop the prosecution and racism against them’. She said she was an active member and attended the feminist activities inside [Organisation 1] and outside it
·     The applicant also referred to being the daughter of one of the [Organisation 1] leaders. However, the ‘terrorism, men, authoritarianism and women abuse had no boundaries nor laws especially in a country that is controlled by radicals and strict Islamic militias’
·     She said ‘we are the only group of Christians still living in Iraq and they are living in fear weakness and no security and most Christians have migrated around the world’. She said ‘most of the Christians in the north of Iraq had lost their lands, farms, bars and restaurants through huge wave of arrogance, theft and occupation of belongings and there is no limit to these people because killing and kidnapping is something that can’t be stopped in Iraq’. She said there is no home for Christians in Iraq since the Iraqi values had become Islamic (the Tribunal understood none of this property was the applicants or that of her family, but some was said to be belong to Assyrian Christians)
By agent submissions dated 3 June 2021, and lodged with the Tribunal less than three days prior to an earlier scheduled hearing, the agent referred to:
·     RRT case which referred to then current information about ‘societal and official attitudes to women in general’
·     the United Nation’s Human Rights Committee said that COVID-19 had spread in Iraq; that the situation was becoming particularly acute for women and girls, especially those who face multifaceted discrimination based on gender, race and/or disability. The agent referred to a lack of adequate health services for women and girls, and a lack of adequate justice for women and girls
·     a report by Ceasefire Centre for Civilian Rights and Minority Rights Group, which said there was 14,000 women killed so far in the Iraq conflict and thousands more abducted
·     the agent then provided information about abductions, rape and sexual assault, trafficking in women and girls. It was then said amongst other things, the applicant could not return to Iraq due to the threat she previously encountered and the current situation of Iraq. It was said that Iraq had been the ‘centre of the world news since 2003’. It was said there was ‘no path can guarantee security and safety for the applicant if she returns’
·     the agent referred to the ‘wrath of the militias’, the ‘recent popular demonstrations’, the ‘corruption and ineffectiveness’, ‘ongoing assassinations’ etc. The agent referred to a Human Rights Watch report which said inter alia the ‘situation in Iraq has devolved to the point that gunmen can roam the streets and shoot members of civil society with impunity’[1]. The agent also referred to the DFAT report dated 9 October 2018, referring to involuntary disappearances
·     the agent referred to the EASO Asylum Report 2020, which referred to the consequences of reform and to the ‘country of origins’; that one person was shot on return to Iraq; and the same fate awaits the applicant
·     the agent then referred to the UNHCR handbook, various advice from same; International Law by Prof Hathaway; and the Tribunal has had regard to all of same prior to drafting this decision
[1] Iraq Security and Humanitarian Monitor ISHM, AUGUST 20 - AUGUST 27, 2020. Page 4, 8- 9 >
The delegate also referred to the following evidence lodged by the applicant:
1.[Organisation 1] ID card [number], issued [in] March 2010;
2.[Organisation 1], letter dated 15 August 2016, stating that the applicant is active in the [organisation] since 2009 in the sector of women's activities within the framework of the Iraqi women activities in general and in Kurdistan in particular;
3.[Organisation 1] Arbil Branch, letter dated 05 January 2018, stating that the applicant has been a member of the Women's Union of [Organisation 1], Arbil branch since 2009 and has paled effective role in promoting awareness amongst women and the defence of their rights;
4.[Organisation 1] Australian Branch letter dated 02 January 2018 about the applicant's engagement within the Assyrian community in Australia.
The Tribunal’s consideration and findings re the applicant’s claims:
The applicant’s Assyrian Christian religion:
Regarding her claim to be an Assyrian Christian, the delegate noted the applicant submitted a letter dated [December] 2017 from the Holy Apostolic Catholic Assyrian Church of the East, Diocese of Australia, New Zealand. The Parish Priest said the applicant was a Christian and a member of the Holy Apostolic Catholic Assyrian Church of the East. The delegate also noted the applicant’s Iraqi citizenship and Iraqi ID card referred to her as being a Christian. The delegate went on to find the applicant was a Assyrian Christian.
At hearing, the Tribunal noted that country information stated:
3.46 The general decline in tolerance towards ethnic and religious minorities from majority communities in Iraq since 2003 has significantly affected Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra. The Christian population has declined considerably since the March 2003 US-led invasion from a pre-2002 population estimate of between 800,000 and 1.4 million persons. According to Christian leaders, there are now fewer than 250,000 Christians remaining in the country, with the largest population – at least 200,000 – living in the Ninewah Plain and the KRI.[2]
And:
3.2.3 … ‘Assyrians
‘Assyrians mainly following the Assyrian Church of the East comprise up to around 5% of Christians in Iraq. Some fled to Iraq following the massacres by the Ottoman army during World War One. ‘Assyrians refer to the killing of their people in 1915 as a genocide, which took place around the same time as the massacre of Armenians. There are 21 Assyrian churches in Iraq, 17 of them in Baghdad. ‘Ethnic Assyrians, a larger group that includes members of other Christian churches in the region, are originally from areas of former Mesopotamia including Iraq, Iran, Turkey and Syria[3]
[2] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[3] UK Home Office, Country Policy and Information Note Iraq: Religious minorities Version 3.0 July 2021.
The KRI is the Kurdistan Region of Iraq, and Erbil (a city with a population exceeding 1 million[4]), and where the applicant had resided, was where the Kurdistan Regional Government was ‘headquartered’.[5] The Tribunal also notes the country information stated that Assyrian Christians are a recognised religion,[6] and that DFAT has stated:
3.51 DFAT assesses Christians belonging to recognised denominations face a low risk of official discrimination. Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority. …[7]
[4] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [2.9].
[5] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [2.47].
[6] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [3.34].
[7] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.

The applicant’s agent believed (words to the effect) that all Christians in Iraq were subject to a real chance of serious or significant harm. However, though the Tribunal will accept there is a ‘general decline in tolerance towards ethnic and religious minorities’, particularly in areas where Christians are a minority, the applicant resided in an area of Iraq where Christians were residing in more substantial numbers. Based on all the evidence herein, the Tribunal is not satisfied that all Christians and or Assyrian Christians, have a real chance of suffering serious or significant harm in all areas of Iraq.
With respect to Erbil, amongst other things, the applicant referred to her own brother and some cousins, all seeking to depart Iraq. However, the principal if not sole reason for this she referred to was due to the economic circumstances to which the Iraq economy and all citizens of Iraq are subject. There is no material evidence that has satisfied the Tribunal the applicant has a real chance of suffering harm in Erbil, for reasons of her religion, and or that her religion would give rise to a real chance of an intention to harm her personally.
The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in her home region of Erbil, due to her being an Assyrian Christian.
Next, the applicant referred to Christian land having been taken by Kurdish groups. The country information stated:
3.41 A number of religious minority communities (including Turkmen, Sunni and Shi’a Arabs, Yazidi, Shabak and Christians) have reported cases of discrimination from KRG authorities in territories claimed by both the central government and KRG, particularly in relation to land and property disputes. … [8]
And:
3.50 Like other religious minority communities, Christians suffered greatly during the Da’esh occupation in northern Iraq … Most Christians attempted to flee Da’esh-controlled areas and many have sought safety outside Iraq. Some Christians have complained that the Peshmerga and other security forces took over homes and at least one town abandoned by Christians fleeing from Da’esh. Christians from the Ninewah Plains area who were forced to leave their homes during the Da’esh occupation have reported being prevented from returning to their homes by PMF groups. State protection in these circumstances is unlikely to provide adequate recourse. [9]
And:
5.2.4 … ‘Assyrian Christians have complained of land appropriations by ethnic Kurds, which may have occurred with the “blessing, or tacit consent” of Kurdish officials. Complaints about appropriation of Christian land by ethnic Kurds have been long-standing and originated mainly from Dohuk and Erbil governorates. A law was issued in 2015 by the Kurdistan parliament to address the issue, however sources report that the law has not yet been enforced.[10]
[8] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[9] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[10] UK Home Office, Country Policy and Information Note Iraq: Religious minorities Version 3.0 July 2021.
At hearing, the Tribunal noted the applicant claimed her parents owned their house in Erbil, and no other land was owned by the applicant or her parents. The agent feared (words to the effect) that it was only a matter of time before the parents’ home was taken. However, the evidence before the Tribunal principally if not solely related to houses or property being obtained after Christians had departed (including when fleeing Da’esh). The applicant’s parents had continued to reside at their home (in Erbil city), there was no authoritative information indicating their home would be forcibly acquired, and based on the evidence that was considered, the Tribunal is satisfied the chance of a forcible loss of the parents’ house was remote. Further, that there was no real chance the applicant would suffer serious or significant harm for this reason in Iraq.
The applicant’s political activities in Erbil:
Regarding the applicant’s political activities, at the Department interview the applicant was asked about her role and activities as a member of [Organisation 1] in Erbil. The applicant was recorded as claiming she did not attend any leadership meetings however, that she was involved in the [organisation]’s women’s human rights branch (or committee), and meetings were held once per month. The delegate continued that as a consequence, the applicant also engaged in activities at [request], ordinarily during her holidays (which she told the Tribunal were about four weeks per year), and she also attended meetings on a monthly basis.
The applicant also explained the [organisation] would prepare reports and she then, through her father, had then been able to obtain a network of contacts within the community and in particular medical professionals, and that she had therefore been able to arrange for the medical assessment of IDP’s (at hearing she said that IDP’s would come from ie, Mosul, and she along with others, as part of the women’s committee, would try to assist). When discussed at the Department interview, the applicant is also recorded as claiming she advocated women’s rights and religious minority issues; that she was involved in collecting and distributing donations to internally displaced persons (IDPs), and in particular women, young girls and children.
The delegate referred to 3 post interview photos depicting the applicant and nuns from the church meeting with Assyrian children from Mosul (the capital of Nineveh governorate and Iraq's second-largest city[11]) in 2014. However, the delegate was not satisfied this evidence substantiated her claimed political activities.
[11] Britanica, Iraq - Baghdad | Britannica , accessed 9 July 2021.
The delegate was not satisfied the applicant gave material ‘details about her political activities or views in her local area’, which she was said to have undertaken on behalf of [Organisation 1]. Neither did the applicant give ‘specific details of each of her overseas trips and of her engagement in representing the [organisation] and Assyrian community abroad’. Given it was claimed [Organisation 1] had paid for the applicant’s overseas travels, the delegate believed (words to the effect) the applicant should have been able to provide more information than she had been recorded as providing.
After considering same, the delegate was also not satisfied the logo of [Organisation 1] that appeared on the letters lodged by the applicant, corresponded to the official logo of the [organisation] found online, which had displayed [the name] in both Arabic and English.
At the hearing, and when discussing her political activities, the applicant claimed she joined [Organisation 1] in or around 2009; that there were around [number] members of [Organisation 1] in Erbil at that time; that shortly after joining, she also joined the [Women’s Committee] – and which had been led by an unnamed person, and that there were around [number] persons who worked for the Women’s’ Committee. The work the applicant was engaged in included speaking with IDP’s (including from Mosul), and trying to arrange for medical and other assistance. The applicant did this as part of a number of people who worked for the Committee, and she was more involved in this work during her holiday periods.
The Tribunal noted the evidence did not appear to indicate the applicant, who commenced work for [Organisation 1] when she was around [age] years of age, had done more than follow directions and engage in [activities] as a mere participant, and that she was therefore a low profile [worker]. The applicant then said her work on her overseas travels on behalf of [Organisation 1], were more high profile.
Notwithstanding the hearing took place on 30 November 2021 (some five years after she departed Iraq), the Tribunal notes the applicant’s political activities in Erbil were said to be a significant and essential reason she ‘fled’ from Iraq, and that these activities commenced in 2009/2010 and continued until mid-2016 (at which time she departed Iraq), and the Tribunal had anticipated the applicant should have been able to provide more detail about her activities if same were true.
That being said, the Tribunal will accept the applicant’s father was and still is [Position 1] of [Organisation 1] in Erbil, and he still lives in the same home in Erbil that he and his wife had resided in for over ten years. The Tribunal also accepts the applicant’s mother continues to [work] in Erbil (though she is nearing retirement). The Tribunal also accepts that due to her father, the applicant joined and commenced low-profile work with [Organisation 1] from 2009/2010.
However, given the applicant was engaged in full time paid employment elsewhere in Erbil in the years prior to her departure, and given the applicant only engaged in low-key [Organisation 1] activities while in Erbil, the Tribunal is not satisfied she has a real chance of suffering serious (or significant) harm in Erbil for any reason discussed above.
The phone threats:
Regarding the aforementioned phone threats (to her and via her father) arising from the claimed expression of her political views, when asked by the delegate, the applicant is recorded as saying she expressed her political views on her Facebook page, which page was under her own name. However, her Facebook page had subsequently been ‘hacked and she lost everything’. Next, when asked by the delegate, the applicant said the phone threats started in December 2015 but she had been able to ‘manage those threats’. She did not provide more information other than she had, ‘changed her phone number’. Given the delegate was not satisfied the applicant was generally credible, they rejected her claim to have been subject to phone threats (directly or via her father), as false.
When discussed at hearing, the applicant said she had expressed her political opinion on her Facebook page, and that when Da’esh were in northern Iraq, she had commenced to receive threats on her Facebook page and by mobile telephone, from around late 2015. The country information stated:
3.50 Like other religious minority communities, Christians suffered greatly during the Da’esh occupation in northern Iraq, … [12]
[12] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
The Tribunal accepts that following the rise of Da’esh in 2014,[13] considerable harm was suffered by varying religious minorities. The applicant said the phone threats to her became more serious towards the end of 2015 (when Da’esh became more prominent around her area). Due to the threats, she had to close her old, then launch a new Facebook page; and she had to change her mobile phone number, in order to avoid further phone threats. The applicant had arranged for this to occur sometime between late 2015 and early 2016. In the first two months of 2016, the applicant also received threats of harm, via her father who was said to have heard of such threats through his work as [Position 1] of [Organisation 1] in Erbil. The applicant also said that in some areas of Erbil, the inhabitants were hoping that Erbil would be taken over by Da’esh.
[13] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [3.64].
However, ‘following three years of conflict, the government declared final victory over Da’esh in December 2017 after recapturing the last areas under Da’esh control along the Syrian border’[14]; and between ‘January 2018 and October 2019, the judicial system processed over 20,000 terrorism cases, overwhelmingly in relation to Da’esh cases.’[15] The applicant did not say at hearing that she engaged in any political activity in Australia. After then noting (words to the effect) the defeat of Da’esh at the hearing, the applicant still feared harm in Erbil from militant groups.
[14] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [2.4].
[15] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [5.22].
The applicant had also said she was subject to threats due to her work for [Organisation 1] from 2010. However, the Tribunal notes she did not change her residential address (except for one month from February 2016) or her place of work in that time (though she did change employment in May 2014 – though not for any claimed threat). Neither did the applicant claim to have taken any material steps to protect or otherwise hide herself. Further, even from around late 2015, the applicant had not taken any material steps to protect or otherwise hide herself.
After then considering the evidence, the Tribunal will accept the applicant, due to her work for [Organisation 1], or due to her father being [Position 1] of that [organisation], was subject to some threats from 2010. However, and prior to February 2016, she did not materially change her routine, and the Tribunal is satisfied that between 2010 and February 2016, the applicant did not have a real chance of suffering serious or significant harm in Erbil, either for reason of her political activities or her father’s position as [Position 1] of [Organisation 1].
Regarding the threats from late 2015, the Tribunal accepts it is possible the applicant may have suffered some threats from that time, either due to her [Organisation 1] activities, or those of her father, and due to the rise of Da’esh in her region, at that time. However, and again, the applicant did not claim to have taken any material steps to protect or otherwise hide herself between late 2015 and late February 2016, and she did not materially change her routine.
The Tribunal does not accept it is plausible the applicant would not have taken steps to protect herself if she was subject to the threats she now claimed. When taking into account the other adverse credibility findings herein, the Tribunal does not accept the applicant was subject to the threats she claimed.
The applicant’s (principally political) travel history:
Next, the delegate noted the applicant provided details of her travel history from July 2010 until December 2015:
·     to [Country 2] on six occasions throughout that period
·     to [Country 5] in 2011
·     to [Country 4] between [July] 2015 to [August] 2015
·     to [Country 1] between [date] December 2015 to [date] December 2015
The Tribunal also received an agent email dated 18 July 2019, referring to the applicant’s ‘proposed’ travel to [Country 2] for the period [August] 2019 to [September] 2019.
In their decision, the delegate noted the applicant had travelled outside of Iraq on 10 occasions between July 2010 and December 2015, and she had then voluntarily returned to Iraq after each period of travel. The delegate continued that at the Department interview, the applicant had explained the [organisation] had paid for her overseas travels as she represented [Organisation 1] and reported on various critical issues concerning her community. The delegate referred to a post interview submission which listed dates of meetings the applicant had attended in [Country 1] and [Country 4]. The delegate then noted the applicant had not provided further information about the nature of the meetings and her particular role at same.
The delegate had referred to a ([Country 1]) [Organisation 1] letter dated 22 October 2017 where it was stated that the applicant had visited ‘the [organisation’s] office in [location] and participated at the meeting on [date] December 2015 about the tragic situation of the internally displaced people from .. Nineveh Plains’. The delegate then noted the letter contained no information which referred to the applicant being in possession of monetary donations which warranted her claimed compulsory return to Iraq. The delegate did not accept the applicant would have chosen to return to Iraq as her [Organisation 1] duty, if she had concerns for her safety for the reasons she claimed, and especially given her low-level membership status within [Organisation 1].
When discussed at hearing, the applicant eventually stated that her work for [Organisation 1] in her overseas travels was (possibly) far more important than the work she had undertaken for [Organisation 1] in Erbil. When then asked what was discussed at such international conferences/meetings the applicant attended on behalf of [Organisation 1], she claimed (words to the effect) she sought to bring to international attention the treatment of (particularly) Christians in Iraq (which the Tribunal understands was widely reported at the time). Notwithstanding repeated attempts, the Tribunal was unable to ascertain further material evidence.
Again, the Tribunal acknowledges the hearing was conducted some five years after the applicant departed Iraq, but the matters being discussed (the applicant’s attendance at international conferences/meetings on behalf of [Organisation 1]), were said to be the most important reasons that brought her to the adverse attention of militants in Erbil, and that caused her to ‘flee’ Iraq’.
That being said, the Tribunal will accept the applicant attended a number of international meetings/conferences for [Organisation 1], and presumably at the request of her father. However, I am not satisfied she participated in such events as more than a mere observer.
The Tribunal is also not satisfied the applicant’s participation at international conferences/meetings would now give rise to a real chance of her suffering serious or significant harm in Erbil.
The [February] 2016 kidnap attempt:
As noted above, the applicant claimed that an attempt was made to abduct her on [date] February 2016. During this attack, she was subject to verbal and physical abuse. She believed this had been undertaken by a Kurdish speaking Islamic group (though she was uncertain – and as stated at hearing, given that Erbil was the headquarters of the KRG, it may be anticipated that many if not most persons in that vicinity would speak Kurdish). As a result of the attack, she was taken to a hospital.
At hearing, the applicant explained that she had been driving with friends in Erbil at the time of the attack and a car behind her had flashed at her when she had stopped in traffic. Two men (in Kurdish police uniforms) had alighted the vehicle and had then attempted to take the applicant (who was the driver) from the vehicle. The Tribunal does not understand that anything about the applicant’s political activities had been referred to during the attack. Further, due to the screaming of her friends and the intervention of passers-by, the attackers had left and the applicant was taken to a hospital.
At the interview, the delegate noted the applicant said she was beaten up, lost consciousness and woke in hospital. The delegate referred to a discharge letter from the [hospital], dated [date] February 2016. That discharge letter did not however, state the applicant was brought to the emergency ward unconscious and as a victim of physical attack. The delegate continued that it also seemed questionable the applicant would have been discharged on the same day rather than kept overnight for observation given her claims that she was badly beaten and had lost consciousness.
In post interview submissions the applicant submitted a letter from [the police], dated [in] April 2016. That letter referred to the police having been:
… notified by [Organisation 1] on [date] February 2016 that an unidentified terrorist group had attempted to abduct the applicant but due to the coordination made by [Organisation 1] with the security authority is concerned, the attempt failed.
As stated above, the applicant also said that Iraqi Criminal law had ‘lightened the provisions of those who attack in Iraq and that it encouraged and increased the attacks against girls and women in Iraq’.
At hearing, the Tribunal noted on a number of occasions, the prevalence of document fraud in Iraq.[16] The Tribunal also notes the efforts of the applicant’s friends and passers-by were apparently far more important with respect to the prevention of the incident, rather than that the incident was prevented or impacted due ‘to the coordination made by [Organisation 1] with the security authority concerned’. Given [Organisation 1] and the Security Authority were not claimed by the applicant (including at hearing) to have even been at the incident, and that is therefore wrong, the Tribunal will also reject the claim that perpetrators were from an unidentified terrorist group as either speculation or false.
[16] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [5.61].

As then noted at hearing, the country information stated:
2.58 Although the KRI is generally regarded as a more benign security environment, its borders are insecure. Violent crime is common, and kidnappings, murders and robberies occur frequently. …[17]
[17] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
The applicant disputed the KRI police were more benign, referring to police brutality during popular protests in Iraq in and around 2019 (the protests arose due to inter alia corruption[18]). However, the Tribunal then said that if it accepts that an attempt was made to kidnap the applicant, it may consider whether she was merely the subject of a random (opportunistic) attack, that there was no intention to harm her personally for any reason, and her attackers were simply seeking (ie) ransom or illegal profit. The applicant said the attack was still stressful and the Tribunal accepts this would be true.
[18] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 at [2.6].
The applicant had claimed she fled the hospital on the day she was admitted (due to her fear of being located there), that she then travelled to an uncle’s home in Erbil, and where she remained for one month. The applicant then said she returned to her own (her parents’) home in late March 2016, and she then continued her work for [Employer 2] (though that work was undertaken from her parent’s home).
The Tribunal noted again, that it did not appear the applicant had taken any material steps to protect or hide herself from the time of her return to her parent’s home in late March 2016, and before her departure from Iraq in late June 2016 (some three months later). The Tribunal said (words to the effect) it may anticipate that persons in fear of harm during that period in Erbil, and for the reasons claimed by the applicant, may have commonly taken such steps – and particularly when an alternate location was available to her.
That being said, it is not plausible the applicant would not have taken more material steps to protect or hide herself in the aforementioned three-month period prior to her departure, if she was targeted by an unidentified terrorist group or anyone else in Erbil (including either Islamist or Kurdish militants), for reason of (ie) her claimed political activities. The Tribunal has rejected her claim to the contrary as false.
However, the Tribunal will accept the applicant was the subject of a random attack in Erbil on [date] February 2016, that her abduction for ransom was foiled by her friends in whose company she was travelling, and also in particular due to the intervention of passers-by who assisted after hearing the screams of the applicant’s friends. However, after then considering the country information herein, and particularly that related to the KRI, the Tribunal is not satisfied the applicant has a real chance of suffering similar harm on return to Erbil, or that such harm would be for (ie) a reason prescribed in the Act, or motivated by an intention to harm her personally.
The applicant’s Schengen visa / Australian visa:
The delegate noted the applicant had been issued a Schengen visa [in] July 2015, which had been valid until [July] 2016. The applicant had been threatened prior to [date] February 2016, and on that date she claimed to have been physically attacked and that she had then remained on paid leave from late February 2016, and she had protected herself by staying in a family home in [Area 1] of Erbil until she departed Erbil in June 2016. However, at the hearing, the applicant told the Tribunal she had only lived with the relative in [Area 1] for one month and had then returned to live at her parent’s home, and which was her usual place of residence. The applicant also said she had then continued to work from home and live at her home, for the three months she then remained in Iraq. The Tribunal has decided to accept the evidence it had clarified at hearing.
The delegate also noted the applicant said her sister and brother-in-law departed Iraq for [Country 1] in October 2015, and had sought asylum. Therefore, the delegate was satisfied the applicant would have understood she would have been able to remain in (or travel to) [Country 1] and seek protection if she had concerns in Iraq for any reason.
The Tribunal noted that at the time of the [February] 2016 incident, the applicant held a valid Schengen visa, allowing for immediate travel to Europe (or [Country 1] where her sister and brother-in-law resided). The delegate said that if the applicant feared for her safety for the reasons she claimed, she might have returned to [Country 1]. However, the applicant chose to remain in Iraq and did not depart until late June 2016, some four months after the February 2016 attack. When discussed at interview, the applicant was recorded as claiming she felt ‘more comfortable being protected in Australia rather than in Europe’. When asked to explain, the applicant is recorded as claiming that [Organisation 1] members in Australia said they would support her if she travelled here. In post interview submissions, and regarding her travel to [Country 1] and return to Iraq, the applicant said she had a task to go back to in Iraq (returning monies). She also said ‘everyone is free to decide when or where to live especially when she belonged to [an organisation] and follow the guidance and cannot take personal action without permission of the [organisation]’ (sic).
When discussed at hearing, the applicant said that conditions in refugee camps in [Country 1] were harsh. She also referred to her mother’s health (heart condition), and given her sister was already a resident of [Country 1], the applicant decided she should return from [Country 1] (where she had stayed between [date] December 2015 to [date] December 2015). However, even if the Tribunal accepts the applicant returned to Erbil in December 2015 due to her mother’s health condition, as noted above, she did not appear to amend her routine on her arrival (apart from her claimed stay at an uncle’s for one month, and later her claimed work from her parent’s home for the following three months – and where she could be located by anyone seeking to harm her).
The Tribunal does not accept it is plausible, the applicant would not have utilised her Schengen visa after the February 2016 attack, if (as the Tribunal said at hearing) she feared imminent harm in Erbil for the reasons she claimed.
Next, instead of travelling to [Country 1], the applicant applied for an Australian Visitor visa on 1 April 2016, and perhaps more importantly, she departed Iraq [in] June 2016, being some five weeks after her Australian visitor was granted to her. The delegate recorded the applicant as saying she delayed her departure from Iraq as her mother was sick and she needed to put finances together for her travel. However, the delegate noted the applicant had not provided any other evidence to support this oral claim.
At hearing, the applicant said she had to arrange her affairs prior to travel. However, again, if as stated at hearing the applicant was in imminent danger, the Tribunal does not accept it plausible she would have delayed her departure for five weeks. Further, and based on the evidence, the Tribunal does not accept it plausible she would have needed five weeks to arrange her affairs, or obtain necessary funds (given her family did not appear to lack any facilities in Erbil), if she was in imminent danger for the reasons she claimed.
Given the findings as to plausibility, and other adverse credibility findings herein, these are further reasons that have satisfied the Tribunal the applicant does not have a real chance of suffering serious or significant harm in Erbil, and that her claims to the contrary are not correct.
Assyrian Women and or Women in Iraq / breach of Islamic (dress) code / COVID-19:
In agent submissions to the Tribunal dated 1 July 2021, it was said that ‘gender-based violence is common in Iraq, and human rights observers report that domestic violence remains a pervasive problem throughout Iraqi society’. Though none of the country information was individually specified, the Tribunal was invited to consider the country information in a separate Tribunal decision (#1932265). The country information had been set out from page 31 of that decision. When discussed at hearing, the Tribunal understands the agent believed the country information in that decision was relevant, though the Tribunal said if it did not believe so, it may not refer to that decision. At the end of the hearing the agent also referred to a Human Rights Watch report about women in Iraq. However, and after having made related findings of fact herein, the Tribunal has preferred the evidence it has referred to.
As noted at hearing, the country information stated inter alia:
2.24 … unemployment and underemployment are both very high in Iraq, particularly for the young, women and those segments of the population unable to access public sector employment …
…..
3.40 … Non-Shi’a Muslims and non-Muslim women report feeling societal pressure to wear the hijab and all-black clothing during the holy month of Muharram …[19]
And:
3.116 Years of repression due to a strong conservative culture, loss of access to basic services and armed conflicts have led to deterioration in the lives of women. Violence and a lack of security and stability largely constrain Iraqi women to traditional family roles, limiting their access to employment and education. Around 28 per cent of women are illiterate, more than double the rate for men. Women are reportedly almost entirely absent from security bodies. Iraq ranked 120th out of 195 countries reviewed in the 2019 UN Gender Inequality Index and 152nd out of 153 countries in the 2020 World Economic Forum Global Gender Gap Report.[20]
And:
5.35 Law and custom do not generally respect freedom of movement for women. Women require the consent of a male guardian or legal representative to apply for a passport, and for identification documents necessary for accessing public services, food assistance, health care, employment, education and housing.[21]
[19] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[20] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[21] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
At hearing, the Tribunal noted the applicant had gainful employment in Iraq, that she had travelled extensively, and that she did not claim to fear domestic harm. The applicant conceded this was correct, but she feared harm for the reasons discussed above. Further, though the evidence of the harm to women more generally in Iraq is concerning (including in areas outside the KRI), this does not mean the applicant in particular, had a real chance of suffering serious or significant harm for that reason. Accordingly, and based on the evidence, the Tribunal is not satisfied the married female applicant, or the Assyrian female applicant who has family protection in Iraq, has a real chance of suffering serious or significant harm in Erbil, for reason of her gender.
Next, the applicant said she did not wear the hijab in Erbil, though she conceded that many if not most Christian women in Erbil, did not wear the hijab. The applicant did say that in some areas of Erbil, it was necessary to wear the hijab and at such times, the Tribunal understood the applicant did wear a hijab. However, the applicant did not wear a hijab when working, though she was subject to some pressure from colleagues to do so. After then considering her evidence, nothing the applicant said satisfied the Tribunal the wearing of a hijab on some occasions, was more than an inconvenience for her. When asked about the breach of other Islamic codes, other than the claimed activism (discussed above), the applicant did not claim to fear harm in Erbil. Accordingly, the Tribunal is not satisfied the applicant would suffer serious or significant harm in Erbil, for breaching Islamic codes in Erbil.
Next, it was claimed that COVID-19 had spread in Iraq; that the situation was becoming particularly acute for women and girls, especially those who face multifaceted discrimination based on gender, race and/or disability. The agent referred to a lack of adequate health services for women and girls, and a lack of adequate justice for women and girls. At hearing, the applicant conceded that her mother in Erbil, was in receipt of adequate health care for her heart condition. The Tribunal does note that COVID-19 had impacted the Iraq economy,[22] resulted in a spike in domestic violence,[23] and had proved to be difficult for the Iraq health services to contain.[24] However, the applicant did not dispute she did not fear domestic violence, or that she would be able to obtain the treatment for COVID-19 that was available to all Iraq citizens (and particularly to those in a position to afford such treatment). The Tribunal is therefore not satisfied the applicant has a real chance of suffering serious or significant harm in Iraq, for any reason prescribed in the Act, or based on any intention to harm her personally, and arising from COVID-19.
[22] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 from [2.18].
[23] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 from [3.124].
[24] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020 from [2.34].
Next, at hearing the Tribunal referred to the following submissions:
· the applicant fears serious or significant harm first, for reasons of her religion (as an educated independent Christian woman who works actively against the Islamist view of women); second, for reason of her membership of a particular social group (she comes from a Assyrian Christian family and refused to abide by the Islamic codes and their treatment of women); and third, for reason of her political opinion (Christian women’s rights activist)
The Tribunal believes it has discussed sufficiently the applicant’s claims herein. However, regarding the first claim, that the applicant fears harm for reason of her religion (as an educated independent Christian woman who works actively against the Islamist view of women), the Tribunal was unable to locate material evidence that an educated Christian women would necessarily fear harm in Iraq, though an activist may, and the Tribunal has addressed that above. Second, it was claimed the applicant fears harm ‘for reason of her membership of a particular social group’ (she was said to ‘come from a Assyrian Christian family and refused to abide by the Islamic codes and their treatment of women’). However, the evidence considered by the Tribunal did not support the conclusion that such a MPSG existed in Iraq; and the other matters referred to (including that she was an Assyrian Christian, that she refused to abide by Islamic codes etc) have been addressed above. Third, that the applicant fears harm for her political opinion (Christian women’s rights activist); and again, the Tribunal is satisfied this has been addressed above.
That being said, and given the findings, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Erbil, for any of her accepted claims.
Failed asylum seeker:
The country information stated:
5.38 … Upon arrival at an international airport, all passengers have their identity information recorded, irrespective of nationality. In-country sources advise that authorities would only arrest an Iraqi on return if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival.
…..
5.43 The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment.
5.44 Large numbers of Kurds (mainly single males) return voluntarily to the KRI, particularly from the UK and European Union countries. The region’s relative security compared to other areas of Iraq has encouraged returns. As with other areas of Iraq, familial connections are important in the KRI for economic and social engagement. Reintegration, and particularly access to employment and housing, is easier for those who have maintained connections in the region. [25]
[25] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
There is no evidence the applicant had committed any offence in Iraq (or Australia). After then having put the gist of the country information to the applicant at hearing, and referring to a lack of evidence of harm to (even) those who reside in a western country for a lengthy period, the applicant said that ‘maybe persons who returned to Iraq had false claims’. Based on the accepted evidence before it, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, if returned as a failed asylum seeker.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K     Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L     Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2021] AATA 5322

6 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Date	Event details
[June] 2016	Arrived as a holder of a [visa] granted on 24 May 2016 that was in effect until [September] 2016
21 September 2016	Applied for a Permanent Protection (XA-866) visa with the assistance of [a named migration agent] (MARN: [number])